The Supreme Court’s Anti-Democratic Feedback Loop

The GOP installs Supreme Court justices over the will of voters. The Supreme Court helps the GOP remain in power. Rinse, repeat.

September 29, 2017

Between the failure of the latest reprehensible attempt to
repeal the Affordable Care Act and Roy Moore’s win in the Alabama Republican
Senate primary, this has
been a rough week for Senate Majority Leader Mitch McConnell. But this week
also brought a reminder of one of his most important coups: preserving a
Supreme Court vacancy for Donald Trump.

On Thursday, the Supreme Court agreed
to hear Janus v. American Federation of
State, County, and Municipal Employees, a case which will almost certainly
gut public sector unions once it is decided. This will be a particularly
stark example of the anti-democratic feedback loop that has allowed Republicans
to maintain power despite a highly unpopular agenda, as unrepresentative
institutions enable Republicans to make appointments or enact policies that
further entrench their power.

In 1977, the Supreme Court held
unanimously in Abood v. Detroit Board of
Education that public employees represented by a union could charge
non-members fees equivalent to dues in order to cover non–politically related activities.
The Court’s logic defending “agency shops” remains sound. It rejected the
argument that such fees violated workers’ First Amendment rights to free speech
by empowering unions to speak for them. Instead, it found that these workers
were asking to free-ride by getting the benefits of collective bargaining
without sharing the expenses. But because the decision favored the interests of
organized labor, it has long been a target of Republican legal operatives as
the federal courts marched to the right, starting with the election of Ronald
Reagan.

Indeed, Abood was
very nearly overruled in 2016. In January of that year, the Court heard oral
arguments in Friedrichs v. California
Teachers Association, and after the arguments it was
apparent that a 5-4 majority would use the case to rule that public sector
agency shops violated the First Amendment, even if compelled dues could not be
used for directly political activities. But after the unexpected death of Justice Antonin Scalia in March, the
Court ended
up deadlocked 4-4, leaving in place a lower court ruling refusing to
overrule Abood.

Which brings us to McConnell. Had Barack Obama been able to
appoint Scalia’s replacement, Abood would
almost certainly have been safe in the short term. But McConnell successfully
blockaded Obama from filling the Supreme Court vacancy. This gamble paid off in
spades when Trump unexpectedly won the election, and nominated Federalist Society dream
nominee Neil Gorsuch to the Court, where he was confirmed on a mostly
party-line vote (with every Republican joined by three deep-red state Democrats).
No wonder McConnell spent
the last week touring his home state with Gorsuch, his critical political
ally.

There is virtually no question that Gorsuch, who is
essentially a human manifestation of the most recent platform of the Republican
Party, will vote to overrule Abood.
Such a ruling will not materially advance anyone’s free speech rights, but will
have a devastating
effect on public sector unions, which is, of course, the point.

Not only would overruling Abood be substantively bad, but the process that led to it highly
disturbing, with many of the worst features of American institutions combining
to produce a Supreme Court majority the American people haven’t voted for.

First, Barack Obama, who won successive electoral
majorities, was not able to nominate a replacement for Scalia because his party
did not have a majority in the Senate, an institution that severely
overrepresents rural conservatives. Republicans maintained their Senate
majority in 2016 despite receiving far
fewer votes overall. Then Donald Trump—despite losing the popular vote by a
substantial margin—was selected president by an
anachronistic electoral mechanism designed to limit democracy and
overrepresent slaveowners.

As a result, Republicans have lost the popular vote in six
of the last seven presidential elections, and yet, have a Supreme Court majority able to impose its vision on a national electorate that has consistently
rejected it. And if one or more of the Court’s octogenarians or
near-octogenarians resigns or is forced to leave the Court while Trump is president and
Republicans control the Senate, Republicans could control the Supreme Court for
decades.

And what’s worse is that Supreme Court Republicans have used
the First Amendment to make American institutions less fair and representative.
They have used the First Amendment to protect the
nearly unfettered ability of wealthy individuals and corporations to influence
elections. They are now poised to use it to reduce the power of organized
labor, one of the few potential counterweights to corporate power. And instead
of actively checking Republican attempts to overcome its unpopular agenda by
suppressing the vote, the Roberts Court has
actively contributed to Republican vote suppression efforts, even when it
has had no remotely plausible basis in the text of the Constitution for doing
so.

The coming decimation of public sector unions by the Supreme
Court is part of a disturbing pattern—and it’s a problem that will get worse
before it gets better, as the Court joins with other antidemocratic features of
American government to stop majorities from expressing themselves.

Scott Lemieux is a Guardian U.S. contributing opinion writer, a lecturer in political science at the University of Washington, and a blogger at Lawyers, Guns and Money.